The proviso to sub-section (2) of Section 202 of the Criminal Procedure Code comes into play when the Magistrate postpones the issue of process and holds inquiry.

ORDER:- This is a reference made by the learned Extra Assistant and Additional Sessions Judge, Ahmednagar, arising out of a criminal case which was committed to him by the Judicial Magistrate, First Class, Shrirampur, by his order dated 2nd April 1983. The fads giving rise to this reference may be stated briefly as follows :-

The complainant Hausabai was in possession of a field Gat No.285 of Mouje Loni Kd. She was at the material time present in the field. It is alleged that accused Nos.1 to 13 committed trespass and also indulged in the act of taking away some properties. It was also alleged that the accused persons caused simple hurts to her, to her grandchildren and to her daughter-in-law, who were also present in the field. She alleged that she has seen the incident. The incident relates to acts which give rise to the offence under Sections 395, 323 and 447 read with Section 34 of the Indian Penal Code. Alleging these acts that accused Nos.1 to 13 have committed, the Complainant filed a complaint before the learned Judicial Magistrate, First Class, Shrirampur.

2. This complaint was filed before the learned Judicial Magistrate, F.C., Shrirampur, on 19th January 1982. On the same day, the learned Magistrate examined the complainant and issued process as follows :

"Issue process under Sections 395, 323, 447 r/w 34 of the I.P.C. against all the accused returnable on 12-2-1982". It appears that some other Miscellaneous Applications were given for issue of search warrant and other minor reliefs, with which we are not concerned. Suffice it to say, for our purpose that the learned Magistrate issued process on the strength of the sworn statement of the complainant which he recorded under Section 200 of the Criminal Procedure Code.

3. It must be mentioned here that the alleged facts in the complaint give rise to the offences under Sections 395, 321 and 447 read with Section 34 of the Indian Penal Code. Offence under Section 395 is exclusively triable by the Court of Session while offences under Sections 323 and 447 read with Section 34 are triable by the Magistrate.

4. The learned Magistrate, after issuing the process as stated above, committed the said case to the Court of Session by his order dated 21st January 1983. When the case reached the Sessions Court, on the strength of the committal order passed by the learned Magistrate, it was numbered as Sessions Case No.12 of 1983. The learned Extra Additional Sessions Judge, Ahmednagar, perused the record and found that the learned Magistrate has entertained the case on a private complaint under S.202 of the Criminal Procedure only on the strength of the statement of the complainant and all other witnesses were not examined. He thought that the case was exclusively triable by the Court of Session. He, therefore, heard the parties on the nature of the order of commitment passed by the learned Magistrate.

5. The learned Extra Additional Sessions Judge, after examining the record and hearing the parties found that the learned Magistrate has committed an error in issuing process in a case which was exclusively triable by the Court of Session only on the strength of the statement of the complainant. He however, found it difficult to quash the commitment. He felt hampered that there is no jurisdiction in him to quash the said commitment, as in his opinion, order of commitment was not correct. It must be observed that in para 3 of his order, the learned Extra Additional Sessions Judge says that "No doubt, the sworn statement of the complainant does make out a case of dacoity as well as of causing simple hurts to the victim. However, in my view the commitment was illegal." He thought that the commitment was illegal because all the witnesses of the complainant were not examined. He also observed that under Section 202 and proviso to that section, it was compulsory for the Magistrate to examine all the witnesses as the case was triable exclusively by the Court of Session.

6. Having found the order of

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